MacE v. Tremco Liberty

IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION TWO

DAVID MACE, )
) 2 CA-IC 2002-0010
Petitioner Employee, ) DEPARTMENT A
)
v. ) OPINION
)
THE INDUSTRIAL COMMISSION OF )
ARIZONA, )
)
Respondent, )
)
TREMCO, INC., )
)
Respondent Employer, )
)
LIBERTY MUTUAL INSURANCE )
GROUP, )
)
Respondent Insurer. )
)

SPECIAL ACTION - INDUSTRIAL COMMISSION

ICA Claim No. 93113-314110

Insurer No. WC608-184186

Jerry C. Schmidt, Administrative Law Judge

AWARD SET ASIDE
Brian Clymer Tucson
Attorney for Petitioner Employee

The Industrial Commission of Arizona
By Laura L. McGrory Phoenix
Attorney for Respondent

Jones, Skelton & Hochuli, P.L. C.
By K. Casey Kurth and Andrea L. Kravets Phoenix
Attorneys for Respondents
Employer and Insurer

B R A M M E R, Pr esiding Judge.

¶1 Petitioner David Mace seeks review of the administrative law judge’ s (ALJ) award

denying him workers’ compensation benefits to pay for conjoint marriage and family counseling

to which he and his family had been referr ed by his psychiatrist. He argues the ALJ’ s decision

was erroneous because the counseling was “ reasonably requir ed” to treat his condition. See

A. R.S. § 23-1062(A). Citing Post v. Industrial Commission, 160 Ariz. 4, 770 P.2d 308 (1989),

he also argues the ALJ’ s findings are insufficient to allow appellate review. Although we

disagree with his Post argument, we set aside the award because we find that counseling services

reasonably required to treat the effects of a claimant’ s industrial injury qualify as compensable

services under Arizona’ s workers’ compensation system regardless of whether the services are

provided, in part, to a third party.

Background

¶2 We view the evidence and all reasonable inferences therefrom in the light most

favorable to sustaining the award. Rent A Center v. Industrial Comm’ n, 191 Ar iz. 406, 956 P.2d

533 (App. 1998). Mace was injured in a 1993 industrial accident and was awarded monthly

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permanent partial disability benefits of $702.20 in 1998. In 1999, he filed a petition to reopen his

claim. Respondent insurer Liberty Mutual Insurance Gr oup agreed to reopen the claim but refused

to pay for marital counseling for Mace and his wife or for family counseling for Mace, his wife,

and their two children. Mace requested a hearing.

¶3 In its decision upon hearing, the ALJ stated that Mace’ s marriage counselor had

testified that Mace’ s industrial injury was a “ substantial contributing cause of the marital

problems” for which Mace had sought counseling. The ALJ noted that Liberty Mutual’ s medical

expert had agreed with that assessment and that the experts had agreed the counseling was

reasonably required to treat the effects of Mace’ s industrial injury. The ALJ also found that

Mace and his family had been referred to a family therapist because “ they [we]re in need of long-

term conjoint therapy. ” Citing Hughes v. Industrial Commission, 188 Ar iz. 150, 933 P.2d 1218

(App. 1996), the ALJ then wrote:

[Division One of this court] held that child care is not considered
medical treatment and is a service provided to a third person, not to
the injured worker . Accor dingly the Court of Appeals held that
ARS §23-1062A did not include payment for child care. The
instant case is distinguishable from Regnier v. Industrial
Commission, 146 Ariz. 535, 707 P.2d 333 ([App.] 1985)[, ] and
Terry Grantham Co. v. Industrial Commission, 154 Ar iz. 180,
74[1] P.2d [3]13 ([App.] 1987).

AWARD

IT IS HEREBY ORDERED that the applicant take nothing
by reason of the REQUEST FOR HEARING pursuant to ARS
§23-1061J heretofore filed February 5, 2001.

This statutory special action followed the ALJ’ s denial of administrative review.

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 Discussion

¶4 We first address Mace’ s argument that the ALJ’ s findings are insufficient to allow

appellate review. In issuing an award, “ administrative law judges should explicitly state their

resolution of conflicting evidence on material and important issues, find the ultimate facts, and set

forth their application of law to those facts.” Post, 160 Ariz. at 8, 770 P.2d at 312. If we cannot

determine the basis of an ALJ’ s conclusions and whether they are tenable, we must set aside the

award. Id.

¶5 Other than citing Hughes, the ALJ here failed to explain the basis for denying

Mace’ s request for benefits. And his curt recitation of applicable law failed to respond to

Mace’ s arguments. However, findings are sufficient if we can “ glean the basis for the [ALJ’ s]

conclusions.” Douglas Auto & Equip. v. Industrial Comm’ n, 202 Ar iz. 345, ¶ 9, 45 P.3d 342,

¶9 (2002). We ther efore determine whether we can discern the reason for the ALJ’ s reliance

on Hughes.

¶6 As a result of an industrial injur y, the claimant in Hughes underwent numerous

surgeries and received psychiatric treatment. She requested a hearing after the insurer denied her

request for child care expenses incurred because of her hospitalizations. In reviewing the ALJ’ s

denial of her request, Division One noted not only that the requested services would have been

“ provided to a third per son, not to the injured worker,” Hughes, 188 Ar iz. at 154, 933 P.2d at

1222, but also that child care does not resemble medical care and is not, therefore, “ other

treatment” within the meaning of § 23-1062(A).

¶7 Unlike in Hughes, there is no question here that counseling is “ treatment” within

the meaning of § 23-1062(A). See McAllister v. Industrial Comm’ n, 88 Ar iz. 25, 352 P.2d 359

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(1960). Because the ALJ relied on Hughes in denying Mace’ s request for benefits, we can only

deduce he concluded that § 23-1062(A) does not encompass treatment provided, in part, to a third

party. Accordingly, because we can glean the basis of the ALJ’ s award, the findings sufficiently

permit appellate review. See Douglas Auto.

¶8 Turning to the merits of Mace’ s issue, employees subject to Arizona’ s workers’

compensation scheme who suffer an industrial injury are entitled to receive “ such medical, nurse

and hospital services and medicines . . . as are provided by this chapter. ” A.R.S. § 23-1021(A).

Assistance to an employee encompasses “ medical, sur gical and hospital benefits or other

treatment, nursing, medicine, sur gical supplies, cr utches and other apparatus, including artificial

members, reasonably required at the time of the injury, and during the period of disability. ”

§ 23-1062(A). Mace claims the counseling he sought is permissible under this provision.

Whether the statute authorizes benefits for either marriage or family counseling is a question of

law subject to our de novo review. See Mejia v. Industrial Comm’ n, 202 Ar iz. 31, 39 P.3d 1135

(App. 2002).

¶9 Citing Hughes, Liberty Mutual contends that § 23-1062(A) “ unambiguously

excludes marital and family counseling” simply because the statute does not expressly include

either in its list of permissible services. A statute’ s silence on a particular subject, however,

certainly does not equate to an unambiguous exclusion of that subject, particularly when the statute

expressly includes “ other” similar subjects, as § 23-1062(A) does. Hughes. Mor eover, Liberty

Mutual’ s interpretation flies in the face of numerous decisions interpreting § 23-1062(A) as

including a broad range of services and equipment not expressly enumerated in the statute, see,

e.g. , McAllister (psychiatric treatment); Terry Grantham Co. v. Industrial Comm’ n, 154 Ariz.

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180, 183, 741 P.2d 313, 316 (App. 1987) (modified van provided based on claimant’ s evidence

that it “ was essential to restore vir tually any mobility”). Further , Liberty’ s interpretation cannot

survive after even a cursory reading of Hughes. As already mentioned, the court in Hughes found

that, regardless of whether the service was recommended by the claimant’ s psychiatrist, child

care is not a compensable service within the meaning of § 23-1062(A) because it is a service

provided entirely to a third par ty and is not medical in nature. Finally, interpreting the statute as

Liberty Mutual suggests would also violate our obligation to liberally construe the workers’

compensation statutory scheme in favor of the injured worker. See No Ins. Section/ Special Fund

Div. v. Industrial Comm’ n, 187 Ar iz. 131, 927 P.2d 791 (App. 1996); Regnier v. Industrial

Comm’ n, 146 Ar iz. 535, 707 P.2d 333 (App. 1985).

¶10 Citing Regnier, Mace argues that the counseling services he sought fall within the

ambit of compensable services under § 23-1062(A) because, unlike in Hughes, the counseling is

to be provided not only to his family members, but also to him. It is uncontr adicted that, except

for an introductory marriage counseling session attended solely by Mace’ s wife, Mace attended

all the counseling sessions with other members of his family.

¶11 In Regnier, because the claimant had been paralyzed in an industrial accident, he

requested payment for a procedure that could allow him to become a father by having his sperm

artificially inseminated into his wife. On r eview of the ALJ’ s denial of the request, Division One

held that the procedure could qualify as “ medical benefits” within the meaning of § 23-1062(A).

Regnier, 146 Ariz. at 539, 707 P.2d at 337. Although there is no indication the employer in

Regnier argued the procedure was an invalid provision of benefits to a third party, see Hughes,

the court noted the procedure was compensable because it “ would replace a bodily function lost

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as a result of the injury. ” Regnier, 146 Ariz. at 538, 707 P.2d at 336. By implication, the

procedure to artificially inseminate the claimant’ s wife was authorized by § 23-1062(A) because

it was directly related to the claimant’ s industrial injury. Courts in other jurisdictions have

adopted this approach. See, e. g., Spyhalsky v. Cross Constr., 743 N.Y. S.2d 212 (App. Div.

2002); Tobias v. Workmen’ s Compensation Appeal Bd., 595 A.2d 781 (Pa. Commw. Ct. 781).

¶12 Courts in other jurisdictions also have addressed issues akin to the one presented

here. In Stables v. Rivers, 562 So. 2d 784 (Fla. Dist. Ct. App. 1990), an industrial accident

rendered the claimant paraplegic. The claimant requested counseling for her family, shown by

the medical testimony to be “ necessary and proper to facilitate [her] own psychological

treatment.” Id. at 786. The Florida appellate court held that the counseling services were

compensable because they had been found “ useful in mitigating the effects” of her industr ial

injury. Id. at 785; see also Southern Indus. v. Chumney, 613 So. 2d 74, 76 (Fla. Dist. Ct. App.

1993) (employer responsible for compensating paralyzed claimant for running board installed on

specially equipped van; claimant’ s wife, who provided attendant care, “ require[d] the running

board to enable her to care for claimant’ s medical needs”). In holding that “ the pertinent inquiry

should be the injured employee’ s medical need for, rather than the nature of, these services, ”

Stables, 562 So.2d at 786, the Florida cour t rejected dicta to the contrary from one of its earlier

decisions. See Prestressed Decking Corp. v. Medrano, 556 So. 2d 406 (Fla. Dist. Ct. App.

1989). And Georgia’ s appellate court reached a similar conclusion in Jarallah v. Pickett Suite

Hotel, 420 S.E. 2d 366 (Ga. Ct. App. 1992). The court there held that the claimant was entitled

to marriage and family counseling, except that portion “ that in effect treats [the claimant’ s] wife

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or any other member of his family. ” Id. at 370; see also § 23-1021(A) (claimant can only receive

“ compensation for loss sustained on account of the [industrial] injury” ).

¶13 Because counseling services are compensable treatment within the meaning of

§ 23-1062(A), McAllister, and because an employer must compensate an employee for services

provided to a third party that ar e reasonably required to treat the effects of the employee’ s

industrial injury, Regnier, Liberty Mutual is responsible for compensating Mace for any medical

services reasonably required to treat the effects of his industrial injury. Accordingly, we examine

the evidence presented to the ALJ on the issues of marriage and family counseling.

¶14 At the hearing, Mace presented evidence that the prescribed marriage counseling

had been undertaken primarily as treatment for his industrial injury. His expert testified that the

“ primary problem” addr essed during marriage counseling “ had to do with [the Maces’ ]

interactions, mostly about arguing, arguing because of the fact that [Mace] had trouble controlling

his emotions” after the accident. Not only did Liberty Mutual fail to challenge this testimony, the

ALJ found that its expert had agreed with it. Because the experts agreed that the marriage

counseling was reasonably required to tr eat Mace’ s industrial injury, the ALJ erred by r elying

on Hughes in denying his claim for these services. See Regnier.

¶15 With respect to the family counseling, Mace’ s expert testified that, although

Mace’ s son was the “ identified patient” in the family, “ there were conflicts within the family

in a global sense.” And, although the ALJ summarized the experts’ testimony that Mace and his

family required family counseling, the ALJ did not find either that Mace’ s industrial accident had

caused that need or that the counseling was intended to treat Mace’ s industrial injury. Without

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these findings, we cannot determine whether the family counseling constitutes a compensable

service under § 23-1021(A).

Conclusion

¶16 Although we are unable to determine on this record whether the family counseling

Mace sought was reasonably required to treat his industr ial injury, the ALJ did find that the

experts had agreed that the marriage counseling Mace sought was necessary, causally connected,

and intended to treat his industrial injur y. Accordingly, because the marriage counseling qualifies

as a compensable service, we set aside the ALJ’ s award denying Mace’ s claim.

________________________________________
J. WILLIAM BRAMMER, JR., Presiding Judge

CONCURRING:

______________________________________
JOSEPH W. HOWARD, Judge

______________________________________
JOHN PELANDER, Judge

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